Coronavirus (COVID-19) Resource Center

The COVID‐19 outbreak is creating a great deal of uncertainty in the global economy.  Companies worldwide are facing unique legal and operational challenges related to the growing anxiety surrounding the outbreak. As this rapidly changing situation evolves, companies are working to navigate disruptions in their daily business, to anticipate potential changes to their operations as well as working to mitigate those risk factors affecting their employees.  Gibson Dunn is equipped to provide strategic counsel and advise clients  on how to best approach many of these key issues.  We can develop and execute a comprehensive approach to guide clients through this complex and fast‐moving situation.

Gibson Dunn has created a multidisciplinary task force to assist our clients.  Please feel free to reach out to any of the individuals identified below with questions or concerns.  We will also be providing regular communications to our clients and friends addressing the many issues outlined below.

We are closely monitoring the guidance issued by government health officials and global health organizations. Our firm has a comprehensive business continuity plan in place and the necessary technology resources to continue to provide excellent client service through these challenging circumstances. Should temporary office closures become necessary to protect our lawyers, staff and communities, we are confident that our lawyers will remain well-equipped to assist clients with their ongoing needs without significant interruption.

Circumstances and information surrounding the pandemic are rapidly changing. Please follow the latest updates via the Centers for Disease Control and Prevention and the World Health Organization.

Latest Insights

Small Business Administration Issues Interim Final Rule and Final Application Form for Paycheck Protection Program

April 3, 2020

On April 2, 2020, the U.S. Small Business Administration published an interim final rule regarding, and a “final” form application with respect to, the Paycheck Protection Program.

What Is an “Essential Business”? New York and California Take Different Approaches

April 2, 2020

As the coronavirus (COVID-19) pandemic continues, state and local jurisdictions across the country have issued unprecedented directives restricting in-person business operations in order to minimize the spread of the virus.  New York and California illustrate two differing approaches to this novel issue. 

Department of Labor Issues Temporary Regulations for Families First Coronavirus Response Act

April 2, 2020

On April 1, 2020, the Wage and Hour Division of the U.S. Department of Labor posted a temporary rule relating to the paid leave provisions of the Families First Coronavirus Response Act, which was enacted to provide additional paid leave to employees in light of the novel coronavirus (COVID-19) pandemic.

The Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security Updates Essential Critical Infrastructure Workforce Guidance

April 2, 2020

On March 28, 2020, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) revised its list of “Essential Critical Infrastructure Workers,” which provides expressly non-binding guidance to state and local authorities on identifying their essential workforce during the COVID-19 pandemic. 

COVID-19 & International Trade – Nation-State Responses to a Global Pandemic

April 2, 2020

Gibson Dunn lawyers provide information on the first visible impacts of the COVID-19 pandemic on and changes to export controls, tariffs, foreign direct investment regulations, and sanctions and respective enforcement. 

Small Business Administration and Department of Treasury Publish Paycheck Protection Program Loan Application Form and Instructions to Help Businesses Keep Workforce Employed

April 2, 2020

On March 31, 2020, the Small Business Administration (SBA) and U.S. Department of the Treasury published guidance on the Paycheck Protection Program (PPP), including an application form and related instructions.

Pro Bono Newsletter – Coronavirus Response Efforts

April 1, 2020

During this uncertain time, we are all facing unpredictable and unprecedented challenges. Recent events have impacted every aspect of our daily life, and are already reverberating through the world economy, healthcare system, and much more. Each of us faces individual challenges, as we take care of our children, parents, and loved ones, all while working […]

COVID 19: ESMA Suggests Regulatory Forbearance in Relation to Best Execution Reporting Deadlines

April 1, 2020

On 31 March 2020, the European Securities and Markets Authority (“ESMA”) issued a public statement[1] to clarify issues regarding the publication by execution venues and firms of best execution reports required by RTS 27 and RTS 28 of MiFID II.  This client alert provides an overview of ESMA’s public statement and its consequences for execution venues and firms. 

COVID-19: UK Financial Conduct Authority’s Short Selling Notification Thresholds Amended

April 1, 2020

The UK Financial Conduct Authority (“FCA”) has made clarifications to its previous announcement on 16 March regarding the European Securities and Markets Authority’s (“ESMA’s”) decision concerning temporary amendments to short selling notification thresholds under the Short Selling Regulation (“SSR”).  The FCA will now be ready to receive notifications at the lower threshold from 6 April 2020.  

COVID-19 Resources for Non-Profits and Small Businesses (NJ, NY & CT)

April 1, 2020

We have received many questions about aid to small businesses and non-profit organizations in the New York tri-state area. Below please find a compilation of Federal and state-specific resources that are available to assist eligible small businesses and non-profit organizations in the New York tri-state area related to the COVID-19 pandemic.

English Law Force Majeure Clauses: A 4-Step Checklist & Flowchart

April 1, 2020

To assist clients in identifying issues they should evaluate in connection with their contractual obligations under English law in the face of the COVID-19 pandemic, Gibson Dunn lawyers in London have prepared a 4-Step Checklist and Flowchart to review and assess force majeure clauses.

Federal Reserve Announces Delay in Effectiveness of New “Control” Framework

April 1, 2020

In late March 2020, the Federal Reserve announced that it was delaying the effective date of its new framework for analyzing “control” under the Bank Holding Company Act by two quarters, to September 30, 2020.

Key Contacts, Issues and Resources

Transactional

Global Finance

ContactJanet Vance

Issues:

  • Financial covenant testing and compliance
  • EBITDA adjustments relating to COVID-19
  • Planning for liquidity issues
  • Material adverse change/material adverse effect conditions to borrowing
  • COVID-19 impact on representations
  • Communications with lenders regarding impact and changes
  • Decision making regarding when/whether to seek amendments or waivers to loan agreements in the current disrupted environment
  • Whether/when to draw remaining revolver capacity given unstable markets

Mergers and Acquisitions / Private Equity

Contact: Barbara Becker (Mergers & Acquisitions), John Pollack (Private Equity)

Issues:

  • MAE/MAC provisions
  • Termination rights and break-up fees
  • Diligence and addressing COVID-19-related issues via representations and warranties
  • Drafting and negotiating interim operating covenants related to the COVID-19 crisis
  • Reps and Warranty Insurance in the COVID-19 crisis
  • Purchase price adjustments – how to navigate the impact on working capital and other adjustment items
  • Acquisition debt financing issues (including reverse break fees for debt financing failures)
  • Refinancing debt and/or equity, financing covenant relief and default cures
  • Bridge financing
  • Force majeure and related issues in material contracts
  • Whether to start a sales process and what to do if a process is already underway

Strategic Sourcing and Commercial Transactions

Contact: Stephen Nordahl

Issues:

  • Force majeure clauses
  • Failure to supply / alternate sourcing
  • Business continuity plan implementation
  • Allocation of resources
  • Termination rights

Tax

Contact: Sandy BhogalLorna Wilson

Issues:

  • Debt modifications, workouts, restructurings – Deemed exchanges, cancellation of indebtedness income, taxable and tax-free reorganizations, ordinary/capital losses on worthless debt or equity interests, REIT testing, distributions and other qualification issues
  • Distressed investment – Phantom income, market discount, REIT qualification issues
  • Net operating loss (NOL) carrybacks – Analyzing the NOL consequences of ownership changes; Drafting and negotiating entitlements to refunds resulting from NOL carrybacks under purchase agreements, analyzing such entitlements under existing agreements
  • Easing limitations on NOL carryforwards, business interest and other deductions/losses
  • Tax payment and return filing extensions and penalty waivers at the federal, state and local levels (e.g., income, sales and use, property, transfer taxes, excise, gross receipts, business, hotel occupancy, etc.)
  • Other COVID 19 tax relief in the United States for employers and employees, including both income and employment tax consequences, and ongoing analysis of legislative activity at the federal and state level
  • Monitoring COVID 19 legislation across Europe and the OECD member states

Litigation

Class Actions

Contact: Christopher Chorba

Issues:

  • Enforcement of class action waivers/arbitration clauses
  • Unfair competition claims
  • Lack of Art. III standing/injury
  • Negligence/strict liability
  • Breach of express/implied warranty
  • Subsequent remedial measures/catalyst theories
  • Medical monitoring claims

Crisis Management

ContactReed BrodskyPenny MaddenBenno Schwarz

Issues:

  • Develop and/or refresh crisis management plans in light of current pandemic
  • Develop and implement communications to stakeholders as it relates to office closings, employee quarantines and potential adverse impacts on delivery of products and services
  • Interface with relevant government agencies as it relates to reputational and/or liability issues

Securities Litigation / Securities Enforcement

ContactMonica Loseman

Issues:

  • Managing shareholder demands and proactively addressing “stock drop” litigation risk
  • Advising on litigation or investigation risk around financial reporting, including changes in earnings guidance
  • Coordinating to address SEC, PCAOB Staff regarding investigations, inquiries

Regulatory

Privacy, Cybersecurity and Consumer Protection

Contact: Ryan BergsiekerAhmed Baladi

Issues:

  • Collection and disclosure of health and other personal information from employees, site visitors, and others
  • GDPR (Europe), CCPA (California), HIPAA, ADA, and other federal, state, and international privacy regulations
  • Cybersecurity risks from telework/remote access and use of personal electronic devices
  • Phishing and ransomware attacks related to virus

Industries

FDA and Health Care

ContactMarian Lee

Issues:

  • Impacts to FDA-regulated product development, clinical trials, manufacturing, and distribution
  • Exercises of enforcement discretion and modifications to FDA regulatory requirements during COVID-19
  • Drug and medical device shortages
  • Products intended to diagnose, treat, or prevent COVID-19
  • Regulation of personal protective equipment (PPE)
  • FDA Emergency Use Authorizations (EUA) of medical products
  • Protections under the Public Readiness and Emergency Preparedness (PREP) Act
  • Expansion of telehealth
  • Enforcement actions relating to COVID-19

Real Estate

Real Estate

ContactAndrew Lance

Issues:

  • Disclosure obligations, communication program
  • Contractual obligations subject to force majeure
  • Safety and management of employees and tenants
  • Safety and management of customers, clients and hotel guests
  • Enterprise continuity
  • Insurance coverage, business interruption